Citation Nr: 0729519
Decision Date: 09/19/07 Archive Date: 10/01/07
DOCKET NO. 04-19 944 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUES
1. Entitlement to service connection for psoriasis.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: New Hampshire State Veterans
Council
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Riley, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1967 to August
1970, including active duty service in the Republic of
Vietnam. This case comes before the Board of Veterans'
Appeals (Board) on appeal from rating decisions of the
Manchester, New Hampshire, Regional Office (RO) of the
Department of Veterans Affairs (VA).
In November 2003, the veteran was afforded a hearing before
Decision Review Officer (DRO). A transcript of this hearing
is of record.
When the veteran's appeal was previously before the Board in
May 2006, it was decided in part and remanded in part. The
case has been returned to the Board for further appellate
action.
The issue of entitlement to service connection for psoriasis
is addressed in the remand that follows the order section of
this decision.
FINDINGS OF FACT
1. The veteran did not participate in combat with the enemy.
2. The occurrence of a claimed in-service stressor
supporting the current diagnosis of PTSD is not established
by credible supporting evidence.
CONCLUSION OF LAW
PTSD was neither incurred in nor aggravated by active
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §
3.304(f) (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002),
and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2006), provide that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. They also require VA to notify
the claimant and the claimant's representative, if any, of
any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")."
The timing requirement enunciated in Pelegrini applies
equally to the initial-disability-rating and effective-date
elements of a service-connection claim. Dingess/Hartman v.
Nicholson 19 Vet. App. 473 (2006).
The record reflects that the originating agency provided the
appellant with the notice required under the VCAA by letters
mailed in April 2003, prior to the initial adjudication of
the claim. Although he was not specifically informed in this
letter that he should submit any pertinent evidence in his
possession, he was informed of the evidence that would be
pertinent and requested to submit such evidence or to provide
the information and any authorization necessary for VA to
obtain the evidence on his behalf. Therefore, the Board
believes that he was on notice of the fact that he should
submit any pertinent evidence in his possession.
Although the veteran was not provided notice with respect to
the disability rating or effective date element of his claim
until June 2006, after the initial adjudication of the claim,
the Board finds that there is no prejudice to the veteran in
proceeding with the issuance of a final decision. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained
below, the Board has determined that service connection is
not warranted for PTSD. Consequently, no disability rating
or effective date will be assigned, so the failure to provide
timely notice with respect to those elements of the claim was
no more than harmless error.
The Board also acknowledges that the veteran has not been
afforded a VA examination in response to his claim but has
determined that no such examination is required in this case
because the medical evidence of record is sufficient to
decide the claim and there is no reasonable possibility that
such an examination would result in evidence to substantiate
the claim. The Board notes that, as discussed below, while
the record establishes that the veteran has been diagnosed
with PTSD, the veteran's claimed in-service stressors have
not been verified. Therefore, remanding the claim for a VA
examination would serve no useful purpose and would only
result in further delay.
The record reflects that the originating agency has obtained
the veteran's service medical records and post-service
treatment records. In addition, it has undertake appropriate
development to attempt to verify his claimed service
stressors. Neither the veteran nor his representative has
identified any outstanding evidence that could be obtained to
substantiate the claim. The Board is also unaware of any
such evidence. Therefore, the Board is also satisfied that
VA has complied with the duty to assist requirements of the
VCAA and the pertinent implementing regulation.
In sum, the Board is satisfied that any procedural errors in
the development and consideration of the claim by the
originating agency were insignificant and non-prejudicial to
the veteran.
Accordingly, the Board will address the merits of the
veteran's claim.
Legal Criteria
Service connection is granted for disability resulting from
disease or injury incurred in or aggravated by active duty.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with § 4.125(a) of
this chapter; a link, established by medical evidence,
between current symptoms and an in-service stressor; and
credible supporting evidence that the claimed in-service
stressor occurred. If the evidence establishes that the
veteran engaged in combat with the enemy and the claimed
stressor is related to that combat, in the absence of clear
and convincing evidence to the contrary, and provided that
the claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of
the claimed in-service stressor. 38 C.F.R. § 3.304(f).
Where a determination is made that the veteran did not
"engage in combat with the enemy," or the claimed stressor
is not related to combat, the veteran's lay testimony alone
will not be enough to establish the occurrence of the alleged
stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996);
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such
cases, the record must contain service records or other
corroborative evidence which substantiates or verifies the
veteran's testimony or statements as to the occurrence of the
claimed stressor. See West (Carlton) v. Brown, 7 Vet. App.
70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. When there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107
(West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49,
53 (1990). To deny a claim on its merits, the evidence must
preponderate against the claim. Alemany v. Brown, 9 Vet.
App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Analysis
The Board notes that the medical evidence of record
establishes that the veteran has a valid diagnosis of PTSD as
it shows he was diagnosed with PTSD while receiving treatment
at the Manchester, New Hampshire Vet Center. The veteran's
social worker, in a November 2005 statement, attributed his
PTSD to his reported stressors of loading bodies into body
bags, witnessing a suicide bomber kill himself and other
civilians, and seeing someone badly burned following a gas
tank explosion. The Board finds that the first two
requirements for service connection for PTSD have been met as
the record contains medical evidence diagnosing the condition
and medical evidence of a link between current symptoms and
an in-service stressor. The Board must therefore determine
whether the evidence establishes that the veteran
participated in combat with the enemy or contains credible
supporting evidence that the veteran's claimed in-service
stressors occurred.
The veteran contends that his PTSD was the result of several
incidents that he observed during his active duty service.
The veteran claims that in December 1969 he witnessed a
gasoline and phosphorus explosion that badly burned a Navy
Seal. The veteran helped load the burned man into a medivac
helicopter. In addition, the veteran contends that while in
Saigon in January 1970, he saw a suicide bomber kill herself
and several other civilians. He also states that during his
active duty service, he pulled dead bodies out of the water
and placed them into body bags. Although it is not entirely
clear, it does not appear that the veteran is contending that
any of these stressors occurred while he was participating in
combat.
In any event, service records show that the veteran served in
the Navy as a radio-operator. He did not receive any award
indicative of his participation in combat and the service
records contain no corroborating evidence of the veteran's
participation in combat or of any of the veteran's claimed
stressors. Moreover, in an October 2004 report, the Center
for Unit Records Research noted that it had been unable to
verify any of the veteran's reported stressors. In fact,
there is no corroborating evidence of the veteran's
participation in combat or of any of the claimed stressors.
Accordingly, service connection is not in order for this
claimed disability.
ORDER
Entitlement to service connection for PTSD is denied.
REMAND
In the May 2006 remand, the Board ordered that the veteran be
provided an examination to determine the etiology of his
psoriasis and that the examiner should review the entire
record prior to rendering his or her medical opinion. The
veteran was provided an examination in December 2006. The
examination report indicates that the examiner did review the
claim folders; however, the examiner stated that while the
record referenced a medical statement by Dr. Levitt, such a
statement was not found in the claims folders. The examiner
went on to conclude that it was not at least as likely as not
that the veteran's psoriasis was related to his active duty
service.
The Board notes that the record does contain a January 2006
statement from Dr. Levitt noting that the veteran had been
troubled with psoriasis for 35 years and that it first
developed while the veteran was in Vietnam. Dr. Levitt also
stated that it is very probable that the veteran's psoriasis
developed as a result of stress during his Vietnam service.
While the December 2006 examiner rendered a well-supported
medical opinion that the veteran's psoriasis was not related
to his active duty service, this opinion was made without
review of the January 2006 statement from Dr. Levitt.
In light of these circumstances, the case is REMANDED to the
RO or the Appeals Management Center (AMC), in Washington, DC
for the following actions:
1. The RO or the AMC should return the
claims folders, to include a copy of this
remand, to the physician who performed
the December 2006 VA examination. The
examiner should review the claims
folders, including the January 2006
letter from Dr. Levitt, and state whether
it is at least as likely as not (50
percent or better probability) that the
veteran's psoriasis is etiologically
related to his active duty service,
including service in Vietnam and exposure
to Agent Orange and other chemicals.
If the December 2006 VA examiner is not
available, the RO or the AMC should
arrange for the claims folders to be
reviewed by another appropriate physician
who should provide the required opinion
and supporting rationale.
2. The RO or the AMC should also
undertake any other development it
determines to be warranted.
3. Then, the RO or the AMC should
readjudicate the veteran's claim based on
a de novo review of the record. If the
benefits sought on appeal are not granted
to the veteran's satisfaction, the RO or
the AMC should issue a supplemental
statement of the case and afford the
veteran and his representative an
appropriate opportunity to respond before
the case is returned to the Board for
further appellate action.
By this remand, the Board intimates no opinion as to any
final outcome warranted.
No action is required of the appellant unless he is otherwise
notified but he has the right to submit additional evidence
and argument on the matter the Board has remanded. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs